Posted On by &filed under Calcutta High Court, High Court.


Calcutta High Court
Smt. Sasthi Sood vs Assistant Registrar Of … on 18 August, 2000
Equivalent citations: (2001) 1 CALLT 184 HC
Author: R Mazumder
Bench: R K Mazumder


JUDGMENT

R.K. Mazumder, J.

1. The instant Criminal revisional application under section 482 of the Code of Criminal Procedure is at the instance of the accused-petitioner Smt. Shashi Sood and this has been filed with a prayer for quashing the instant Criminal Proceeding arising out of the Case No. C-151 of 1988 under section 220(3) of the Companies Act. 1956, now pending before the learned Chief Judicial Magistrate, Alipore, South 24-Parganas.

2. The case of the accused-petitioner was in brief that O.P. No. 1 being the Assistant Registrar of Companies, West Bengal filed a petition of complaint on 18.1.88 against the petitioner and three others in the Court of learned Chief Judicial Magistrate, Alipore, South 24-Parganas alleging Inter alia that the petitioner and others contravent the provisions of section 220(1) of the Companies Act, 1956 by way of not filing three copies of Balance-Sheet and Profit & Loss Account in the prescribed form duly filled in with the complainant as contemplated in the Act. To be specific, although under the law the petitioner as one of the Directors of the Company and others were required to hold the Annual General Meeting of the Company on or before 30.6.87 and that although the Balance-Sheet and Profit & Loss Account of the Company for the year ended on 31.12.86 ought to have been filed in the office of O.P. No. 1 on or before 30.7.87 the same was not done by the petitioner and others. The further allegation against the petitioner was that although show-cause notice was issued by O.P. No. 1 urging upon the petitioner to do the same, the petitioner and others defaulted in complying with the same and were thus knowingly guilty for such default, non-compliance and failure and hence they were liable for punishment under section 220(3) of Companies Act, 1956. According to the petitioner the instant Criminal Proceeding was not maintainable at all inasmuch as the petitioner was merely a house-wife and had nothing to do with the management and other affairs of the Company. According to her, the ingredients of the alleged offence against her were totally absent in the petition of complaint filed by O.P. No. 1. Besides, according to her in the absence of averments in the petition of complaint against her, no liability could be fixed against her merely because she had been described as a Director of the accused Company. She was again not a ‘Principal Officer’ of the Company nor she came within the expression ‘officer in default’. But unfortunately the learned Court below failed to appreciate her case and took cognizance of the alleged offence and issued process against her without due application of mind. Hence the prayer for quashing the instant criminal proceeding against her.

3. I have had the opportunity of hearing learned counsels for both the parties at length in the matter.

4. The only question requiring consideration in this hearing was whether the instant Criminal proceeding arising out of complaint Case No. C-151 of 1988, now pending before the learned Chief Judicial Magistrate, Alipore, should be quashed or not.

5. At the time of hearing, learned counsel for the accused-petitioner vehemently submitted that his client was a house-wife and an innocent
person, who had no manner of connection with the day-to day affairs or management of the Company. It was further submitted by him that in the petition of complaint there were no sufficient ingredients of the alleged offence so as to connect the Petitioner with the alleged offence. It was again submitted by him that the instant petition of complaint was bad in law being not in comformity with section 5 of the Companies Act. It was specifically asserted by him that his client did not come within the expression ‘Officer who is in default’ as mentioned in section 5 of the Act inasmuch as section 5 of the Act meant only an officer of the Company, who was knowingly guilty of the default, non-compliance, failure, refusal or contravention as contem-plated in the Companies Act, 1956. Again, it was submitted by him that the learned Court below took cognizance of the offence and issued process against the petitioner and others illegally and without application of mind. He, therefore, urged upon this Court for quashing the instant Criminal proceeding in exercise of its inherent power under section 482 of the Code of Criminal Procedure, which vested wide powers on High Court to do the same so as to prevent the abuse of the process of the Court.

6. The learned counsel for the O.Ps submitted, on the other hand, that in the petition of complaint O.P. No. 1 has specifically mentioned as to when and in what manner the petitioner committed the alleged offence as punishable under section 220(3) of the Companies Act, the petitioner being a Director of the Company. It was asserted by him that being a Director of the Company the petitioner was certainly responsible for conducting the day-to-day affairs of the Company and its management. In that view of the matter the petitioner ought to have compiled with the provisions of the Act by way of filing three copies of the Balance-Sheet and Profit & Loss Account of the Company for the relevant period in the office of the O.P. No. 1 as stipulated by law. It was also submitted by him that the learned Court below rightly took cognizance of the offence and issued process against the petitioner and others as the petition of complaint made out a prima facie case against the petitioner for committing an offence punishable under section 220 of the Companies Act. He, therefore, urged upon this Court for dismissing the instant Criminal revisional application.

7. The law is now well settled that the High Court is invested with plenary powers to quash criminal proceedings pending before any subordinate Court, where it appears that the allegations incorporated in the FIR or petition of complaint, even when they are taken on their face value and accepted in their entirely do not constitute a cognizance offence. It is again well settled that while exercising the discretionary powers to quash a criminal proceeding before a subordinate Court, the High Court shall not embark on an enquiry as to whether the evidence or allegations are reliable or not. In other words, while exercising power under section 482 Cr.PC the High Court is not required to probe into any question as to whether the materials or allegations constituting the offence were trustworthy or not at the very initial stage of investigation. It is again not necessary that a complainant should reproduce in the body of the complaint all the ingredients of an offence verbatim. Again, it is well settled that when the petition of complaint and its annexed documents made out a prima facie case, the High Court cannot enter into a debatable area as to which of the
two versions of the parties is true. It is again not necessary to make a meticulous study of a case before trial to find out whether the said case would end in conviction or acquittal. It is again well settled that the inherent power to quash a criminal proceeding should be exercised very sparingly and in the rarest of rare cases to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Such power cannot be exercised to stiffle a legitimate prosecution. But where the FIR or the petition of complaint does not disclose any offence or is otherwise frivolous vexatious or oppressive, it is open to the High Court to interfere under section 482 Cr.PC and to quash a criminal proceeding pending before a subordinate Court.

8. The original petition of complaint in respect of the instant criminal proceeding filed by O.P. No. 1 against the petitioner and others is available on the Lower Court Record. It appears prima facie therefrom that the petitioner has been described therein as an officer/Director of the concerned Company. It has also been mentioned therein that as per provisions contained in section 220(1) of the Companies Act, 1956, a Company and its Directors were under the statutory obligation to file three copies of the Balance-sheet and the Profit & Loss Account of the Company in the office of the O.P. No. 1 within the time limit as comtemplated in the Companies Act, 1956. Again it appears prima facie from the petition of complaint lodged by O.P. No. 1 against the petitioner that Annual General Meeting of the Company concerned ought to have been held on or before 30.6.87 and that the Balance-sheet and Profit & Loss Account of the Company for the year ended on 31.12.86 ought to have been filed in the office of O.P. No. 1 on or before 30.7.87. It has also been averred in the petition of complaint that inspite of show-cause Notice/Default Notice issued by O.P. No. 1, the Balance-sheet and the Profit & Loss Account as at 31.12.86 have not yet been filed by the petitioner and others and thus the petitioner was in default in the matter and was knowingly guilty of such a default, non-compliance and failure to file the said documents. There is further averment in the petition of complaint that the petitioner was liable to be punished for such lapses under section 220(3) of the Companies Act, 1956. It has also been mentioned therein that O.P. No. 1 being a public servant filed the instant petition of complaint in his official capacity and that such complaint was based on the basis of the records maintained in the office of O.P. No. 1. In view of such categorical averments, it cannot be said that no prima facie case has been made out by O.P. No. 1, a public servant, against the petitioner in the petition of complaint. In my view the instant petition of complaint and other materials as available on record made out a prima facie case against the petitioner for committing an offence punishable under section 220(3) of the Companies Act and hence there was no question of quashing the instant criminal proceeding as prayed for by the petitioner. The petitioner being one of the Directors of the Company was prima facie liable to file three copies of the Balance-sheet and Profit & Loss Account of the Company within the time limit contemplated by the Companies Act, 1956. But despite service of Show-cause Notice/Default Notice, the petitioner took no action whatsoever in the matter. In the facts and circum-stances of the case, I am, therefore, of the clear view that the learned court below lawfully took cognizance of the offence under section 220(3) of the
Companies Act and issued process against the petitioner and others being satisfied prima facie that there were necessary ingredients of the offence in question in the petition of con plaint and that such materials prima facie connected the petitioner with the offence in question. Hence the instant criminal revisional application is liable to be dismissed and the same is hereby dismissed.

9. Order of stay as granted by this Court is hereby vacated learned Court below is hereby directed to go ahead with the instant case as early as possible in accordance with law.

Let the Lower Court Records be sent down to the learned Court below immediately.

There will be no order as to costs.

10. Application dismissed


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